Protocol | Workplace

How codes of conduct can be weaponized against workers

Codes of conduct usually protect companies from legal liability, not enshrine cultural values or worker protections.

A businessperson at a desk looking stressed.

Codes of conduct typically outline illegal behaviors at work, according to employment lawyers.

Photo: martin-dm via Getty

Despite loving her company and her coworkers, Britt Caldwell was miserable at work. Her relationship with her manager had deteriorated to the point that she felt cut out of meetings, forced to perform acts of "loyalty," gossiped about, disrespected professionally and stripped of authority. Informal conversations with human resources left her believing that she could either tolerate the situation or quit, she told Protocol.

So Caldwell wrote a viral blog post about the toxic power given to white women in the workplace, filed her six weeks notice at Webflow, and started the process of a formal HR investigation into the situation with her manager. Nearly two months later, just a few days before her last day at Webflow in mid-June, the investigation (conducted by a third-party attorney) concluded that "there was no unlawful behavior or Webflow policy violation substantiated."

Caldwell was devastated. "I had at least six hours with the investigators. Two different sessions. I gave them a million screenshots," she said. She felt angry — at the company to a certain extent, but more at the reality that Webflow's policies weren't designed to prevent the experience she'd had. The conclusion left her wondering: "What's even the point of a code of conduct?"

Ellen Pao, the CEO of Project Include (a nonprofit advocating for diversity and inclusion in tech) and the former CEO of Reddit, sees Caldwell's experience as an example of a broader institutional problem with codes of conduct and workplace investigations that she has observed in her research. "It's because the whole system is broken. The company hires an investigator, it's usually a lawyer who investigates companies," she said. "There's a lot of conflict in this situation. A lot of lawyers build reputations of protecting companies as investigators, and that's how they get repeat business. And that's why these reports come out and a lot of them are garbage."

Webflow has a reputation for being a company that values its workers and seeks to build an inclusive environment; its CEO, Vlad Magdalin, is almost the Twitter cult leader for inclusive culture. "We highly value our team and fully encourage employees to always surface any questions or concerns they may have about behavior in the workplace and continue to do everything we can to ensure Webflow is an open, honest, equitable and enjoyable place to work. We believe our code of conduct reinforces this," the company wrote in response to questions about the purpose of its code of conduct.

Caldwell said that she still believes that the company's management means what it's said (and continues to say) about inclusive culture, but now she wonders if the lawyers and HR teams that design code-of-conduct policies structure them so it is impossible to turn those words into reality.

"These policies are where tech companies, and any corporation or business entity, can get the get-out-of-jail-free card. They can be these people — and I believe the people at Webflow really are — but at the end of the day when you're the judge, the jury, the executioner, and you've got a lot to lose, it doesn't matter," Caldwell said.

"Another outcome for me could have been that Webflow said, 'Oh, this didn't violate our code of conduct? Maybe we should change it.' If anyone is going to hold themselves accountable, it's Vlad. They're the one company that I truly believe does care," she said.

In general, codes of conduct are designed to protect companies from liability for workplace conduct that breaks the law. By outlining the policies in a handbook and published code of conduct, it becomes more straightforward for companies to fire people who explicitly break any of those rules — and prevents the company from being vulnerable to charges that it isn't clear about what it does and does not not allow at work. "That is almost always the driver of anti-sexual harassment policies, anti-bullying policies, all of those things. It's not trying to define how a culture can be great, it's about how a company can be protected from liability," said Lisa Gelobter, the CEO of tEQuitable, an organization that provides third-party ombuds services for companies and workers. "It doesn't have to be that way, but it is typically that way."

These types of policies are usually designed to reflect the minimum standard of acceptable behavior, according to Domenique Camacho Moran, a New York-based attorney who helps companies write these policies and other handbook documents. Both Camacho Moran and Gelobter often use the word "aspirational" to describe a company's cultural ideals; for Camacho Moran, the "aspirational" goals usually end up in a statement about what is hoped for at the beginning of a handbook, not in a document outlining required behaviors inside the code of conduct.

"In some places, they use the code of conduct as a cudgel for the letter of the law, as opposed to actually looking for the intent. A code of conduct, typically, is intended to protect companies. That is their raison d'etre. Should it be that way? No, in my opinion," Gelobter said. Codes of conduct are typically written with the assistance of a lawyer or company general counsel, and they rarely involve extensive worker input.

Camacho Moran believes that most institutional problems aren't created by the code of conduct itself, and that the code of conduct should not be used to navigate every workplace cultural complaint. She often advises companies that words like "bullying" and "mean" and "friendly" are too loaded with subjective perspectives and experience to be valuable in a code of conduct. "Sometimes when it is perceived to be mean behavior, ... it's just holding people to a standard. And sometimes it's holding people to a standard and it's laced with mean behavior. When we talk about bullying, it's so subjective," she said.

Gelobter, whose role as an ombudsperson means that she is ideally focused on protecting companies and workers equally, believes that codes of conduct in their current form neither protect companies from risk nor protect workers. Writing codes of conduct that just stick to the legal rules about what is and is not allowed at work doesn't seem to be reducing the risk of a massive workplace scandal or lawsuit like the one currently snowballing at Activision Blizzard, or the countless others at Tesla, Google, Pinterest and more. "The way [companies] have been doing it with codes of conduct, with policies, are actually a greater risk than looking at it differently," she explained.

Gelobter worries that companies usually want to blame specific people, rather than the company and culture structure, for workplace problems. "It's not about one human, it's about what in the culture are the processes of the organization that have enabled that or have allowed that to happen. The companies are like, 'let's root out that one human,'" she said. While removing a harasser is obviously important, it doesn't usually solve the company culture issues that allowed that harassment to happen in the first place. And for many workers, toxic environments are created by countless smaller injustices and comments that add up to an unsafe or unhealthy place to work, even if one specific individual isn't to blame for all of the causes.

What does "doing it differently" look like in practice? Pao, who did work to create culture change while CEO at Reddit, believes it's about bringing workers and institutional leaders together to create a codified system of values. If workers are involved in creating the code of conduct, then people are less likely to understand it as a random set of rules that cause harm. "There is no template to use," she said. "It should cover the values of a company. This is a core of value sets that we are trying to enforce and promote, and these are the things we need to do to make sure that happens."

Workers who witness harassment, disrespect or other toxic behavior also need to be able to trust their HR departments with complaints, or at least trust the third-party investigator hired by their employer. Research from Pao at Project Include and surveys at tEQuitable have both found that at the moment, most employees don't have that trust.

"The companies that we work with are all folks who are invested in making their organizations better. They are like, 'We want to fix this. Oh wait, our people don't trust HR. We should bring in tEQuitable.' They are trying to make change," Golebtor said.

Pao worries that even hiring companies like tEQuitable doesn't alleviate the fundamental problem: When a company pays for its own investigators, it's difficult to feel there is true independence or trustworthiness.

"At the end of the day, somebody has to pay for it. Maybe there can be an industry-wide process that covers it. I think that people who are driving some of these companies — tEquitable and others — are great. I just worry about the business model. You have to be a really strong leader in an outside organization to report really terrible problems," Pao said.

Caldwell wrote her first blog post about her experience with her manager because she needed a way to process how she came to realize her experience of work was toxic and unhealthy. She is now sharing the conclusion of her story at Webflow because months of reflection have led her to understand how companies are designed to protect themselves, regardless of what the people who lead them may say and truly believe about their duty to workers. She believes that Webflow's code of conduct should have been better designed to prevent the experience she had at work, and she wishes the company had decided to revisit its code of conduct in light of the news that her own experiences didn't violate any company policies.

"My generation and future generations, we are demanding dignity and respect. That's what we're demanding, just dignity and respect. It's wild how hard that is for us," she said.

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